VIDYA WATI BAI Vs. PRAKASH VATI DEVI

JUDGEMENT

(1.) The present application is under Sections 151, 152 and 153 of the Code of Civil Procedure. The application has been filed on 6th January, 1976, and is concerned with a suit which was decided by compromise on 2nd May, 1975. The suit was for partition and other reliefs instituted by the plaintiff, Shrimati Vidyavati Bai against Shrimati Parkash Vati Devi and others. The plantiff was the first wife of the late Kanwar Krishna Chandra and the first defendant was the second wife. In the array of parties, Shri Mahesh Chandra son of the late Kanwar Krishna Chandra was shown as defendant No. 2 and Shrimati Usha Mahesh Chandra, his wife was shown as defendant No. 3, Defendants Nos. 4 and 5, namely, Kumari Vanita and Kunwar Raghav Chandra, the minor son and daughter of defendants Nos. 2 and 3 were shown as defendants Nos. 4 and 5 respectively. The parties proposed a settlement by which the entire suit was compromised, but there being minor defendants, the leave of the Court was sought on behalf of the minor defendants. The application moved in this behalf was signed by the plaintiff herself and her counsel Mr. A.N. Goyal, Advocate, by defendants Nos. 1, 2 and 3 and also by the Advocate for the defendants, Mr. R.L. Tandon, Advocate. It was also signed by one Shri Madho Pershad as guarantor. Unfortunately, this application was signed by Shri Mahesh Chandra in his personal capacity and as guardian for minor defendants 4 and 5. It was not signed by Shrimati Usha Mahesh Chandra in her capacity as guardian-ad-litem. Undoubtedly, Shri Mahesh Chandra, defendant No. 2 was the natural guardian of his minor children and he rightly signed the application in this capacity, but, Shrimati Usha Mahesh Chandra did not sign the application in her capacity as guardian-ad-litem. In the application itself, in paragraph No. 1 it stated that defendant No. 2 was the natural guardian, father and guardian- ad-htem of defendants Nos. 4 and 5. There was apparently an accidental slip or omission by the parties in as much as they were under an erroneous impression that defendant No. 2 was also guardian-ad-litem of defendants Nos. 4 and 5 in addition to their being natural guardian. The Court record shows that there was an order passed by P.N. Khanna J. on 15th July, 1959, whereby he had appointed defendant No. 3 as gurdian-ad-litem of defendants Nos. 4 and 5.

(2.) On the aforementioned application, I.A.. No. 1162/75 an order was passed by myself on 2nd May, 1975, granting defendant No. 2 leave to compromise the suit on behalf of the minor defendants, ln that order, I stated:-

(3.) The present application, I.A. No. 37/76 has been moved to make necessary amendment in the orders and judgment passed on 2nd May, 1975, with a view to making them effective in respect of defendants Nos. 4 and 5 after permission had been granted to the guardian-ad-litem of those minor defendants. For the purpose of determining whether there has been any accidental slip or omission, I have recorded the statements of M.L. Bhargava, Advocate for defendant No. 3 and the statement of the counsel for the plaintiff as well as the counsel for defendants Nos. 1 and 2. They are all agreed that there has been an accidental slip or omission. It is also otherwise obvious, that there has been an accidental slip or omission, because there was an order of the Court appointing defendant No. 3 as guardian-ad-litem. The leave has been given to defendant No. 2 to enter into the compromise. In fact, defendant No. 2 being the natural guardian of defendants Nos. 4 and 5 was, in Hindu Law, entitled to seek such leave but, as defendant No. 3 had been appointed guardian-ad-litem. it was also necessary for her to seek the leave of the Court. The omission has now been brought to the notice of the Court, the previous application was also signed by defendant No. 3 in her personal capacity and the present application has been signed in her personal capacity and also as guardian- ad-litem of defendants Nos. 4 and 5. In has been stated on her behalf that but for the accidental slip or omission, she would certainly have signed the original application on behalf of defendants Nos. 4 and 5 in her personal capacity and also as their guardian-ad-litem along with the other parties. She was strongly of the view that the compromise was in the interest of the minors. In fact, in my own order, I have recorded that the compromise was obviously to the benefit of the said minor defendants. Thus, from the circumstances, it rs plain that there was an accidental slip or omission in the matter of moving an application for seeking the leave of the Court to enter into the compromise on behalf of the said minor defendants. Nos. 4 and 5, being the minor children of defendants Nos. 2 and 3.